Did Mogoeng Mogoeng’s comments breach judicial code?
The chief justice’s statements display his commitment to the impartial resolution of the Israel/Palestine conflict
#Africa4Palastine intend to lay a complaint against Chief Justice Mogoeng Mogoeng for comments he made about Israel during a seminar hosted by the Jerusalem Post. The ANC has also issued a statement expressing concern.
As University of Cape Town academic Prof Pierre de Vos rightly points out, the correct way of examining this issue is to look at the code of judicial conduct and determine whether the chief justice’s remarks are prohibited by that code.
In terms of article 14(2), a judge may be involved in extrajudicial activities, including those embodied in their rights as citizens, if such activities are not incompatible with the confidence in, or the impartiality or independence of, the judge.
In terms of article 12, a judge must not (a) belong to any political party or secret organisation; or (b) become involved in any political controversy or activity, unless it is necessary for the discharge of judicial office.
Jerusalem Post editor in chief Yakov Katz started the seminar by asking the chief justice to comment on the killing of George Floyd in the US. He responded that the US has failed in the practical implementation of its constitution, and that mere lip service has been paid to human lives and equality.
Katz proceed to ask the Mogoeng to comment on the tearing down of US statues and the concern that this amounts to an erasure of history. The chief justice said: “I wouldn't be critical of those that were tearing down statues that are representative of the evil past. But I would say that what the message that the protests and the tearing down of those statues communicates is this, that we have failed as leaders. We have failed as people in different countries and even globally to come up with a plan that addresses racism and its effects in a more practical way.
“Meaning that when any leader in any society claims to be committed to the eradication of racism, that leader would have to be asked, what is the plan? How are you going to ensure that in families, at kindergarten level, in primary schools, high schools, university, at a workplace, and even in government institutions, there is a systematic way of conscientising every citizen about their individual and collective responsibility to root out racism.”
Mogoeng then made reference to the bible by quoting Mathew 5:44. “But I say unto you, love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Both statements relate to controversial issues about race and history, but neither the ANC nor #Africa4Palastine have expressed concern about them.
The chief justice also made the following remarks about Israel: “I love the Jews. I love Israel. I love Palestine, I love the Palestinians. I love everybody. One because it's a commandment from the God in whom I believe, but also because when you love, when you pursue peace with all human beings, you allow yourself the opportunity to be a critical role player whenever there is a dispute.”
“I'm under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel. And I cannot, as a Christian, do anything other than love and pray for Israel, because I know hatred for Israel by me and for my nation can only attract unprecedented curses upon our nation. So what do I think should happen?
“I think as a citizen of this great country, that we are denying ourselves a wonderful opportunity of being a game changer in the Israeli-Palestinian situation. We know what it means to be at loggerheads; to be a nation at war with itself. And therefore the forgiveness that was demonstrated, the understanding, the big heart that was displayed by President Nelson Mandela, and we, the people of SA following his leadership, is an asset that we must use around the world to bring about peace where there is no peace, to mediate effectively based on our rich experience.”
In 2015, Justice Edwin Cameron made the following public remarks: “A just resolution in Israel/Palestine is one of the pre-eminent moral challenges, not just for those who support Israel, but for the world at large. We must live together in this world — with all of its caprice and hatred and cruel unpredictability. And our claims of it for ourselves must not contribute to its caprice and hatred and unpredictability.”
No complaint was laid against Justice Cameron.
Racism in the US and the Israel/Palestine conflict are both controversial issues, but there is good reason to believe that neither of them are political controversies as described in the code. The code explicitly refers to political parties. There are good reasons for judges to avoid being embroiled in controversies that involve political parties, because those controversies may come before the judge in a legal dispute. Many social issues will be deemed controversial by citizens and pressure groups, but this in and of itself does not mean the code prohibits judges from speaking about those issues.
In terms of article 9, a judge must resolve disputes by making findings of fact and applying the appropriate law in a fair hearing, which includes the duty to:
- Observe the letter and spirit of audio alteram partem rule (hearing both sides);
- Remain manifestly impartial; and
- Give adequate reasons for any decision.
In terms of article 4, note 4 (ii), judges do not pay heed to political parties or pressure groups and perform all professional duties free from outside influence. The chief justice’s statements display his commitment to the impartial resolution of the Israel/Palestine conflict and are in keeping with the demands of the code. He should pay no heed to the pressure exerted by #Africa4Palestine and the ANC.
• Oppenheimer is a practising advocate at the Johannesburg Bar.
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